There has been quite a bit of news lately, along with general commentary on this blog, about the legality of police searches of the contents of an arrestee’s cell phone. The issue raised in United States v. Wurie, which the Court has agreed to review, is whether the Fourth Amendment permits the police, without obtaining a warrant, to review the call log of a cellphone found on a person who has been lawfully arrested. (The Court has also agreed to hear a companion case out of California: Riley v. California.) But there is more here than meets the constitutional eye, or so maintains Robert Corn-Revere, a noted First Amendment lawyer who is a partner at the Washington, D.C. office of Davis Wright Tremaine. Yesterday, he filed an amicus brief on behalf of the National Press Photographers Association and thirteen media organizations in support of the Petitioner in the Wurie case. What is interesting about this brief is the First Amendment argument Mr. Corn-Revere offers up to buttress the Fourth Amendment claim at stake in these cases.

Here is the media interestin all of this: “Of particular concern to Amici, media outlets increasingly rely on issuing reporters smart phones to take photographs and to record other story elements. Cell phone cameras are capable of taking high quality photographs and audio-visual recordings. And, because smart phones can connect to the Internet, it is easy for journalists to upload photo, video, audio, or text files to the Internet to file reports.” So opens this amicus brief.

Here is the problem for the media: “These new technologies have greatly expanded the ability to gather and report news, but the same capabilities that make them a boon to journalists create a grave threat if they are subject to unrestricted warrantless searches incident to arrest. Unfortunately, the threat is not just hypothetical, and the enhanced newsgathering capacity may have made reporters more frequent targets of police action. There has been an epidemic of arrests for nothing more than the journalistic enterprise of photographing public events. Frequently, such arrests are made on generalized charges of ‘disorderly conduct’ or ‘disturbing the peace,’ and often charges are dismissed without further action. But such circumstances could be used, and in some cases have been used, as a predicate to search or seize photographic equipment.”

Here is the First Amendment take on this: “It is essential that the Fourth Amendment be scrupulously applied in cases that involve sophisticated communications technologies because of the inherent intrusion of warrantless searches on . . . other fundamental rights,” including First Amendment rights. This interconnectivity of rights, Corn-Revere argues, has both historical roots and contemporary significance in our cellular world. Or as he puts it: “These interconnected rights have long been ‘part of the intellectual matrix within which our own constitutional fabric was shaped,’ . . . and [any] failure to protect them in light of changing technology would risk converting constitutional principles into ‘impotent and lifeless formulas’ whereby ‘[r]ights declared in words might be lost in reality.’ Olmstead, 277 U.S. at 473-74 (Brandeis, J., dissenting).”

Oral argument in the two cases is set for April 29th.

Breast Cancer Awareness Bracelets & Student Speech Rights

In case you missed it: Two days ago the Supreme Court declined to review Easton Area School District v. B.H. This was the case in which school officials at Easton Area Middle School barred seventh-and eighth-grader students from wearing “boobie brackets,” this by way of the students’ attempt to participate in national Breast Cancer Awareness Day. According to a Reuters news report, “school officials punished the [Brianna Hawk and Kayla Martinez] by giving them 1 1/2-day in-school suspension. The girls also initially were banned from the school’s winter ball, although they were later allowed to attend. The school district eventually banned the bracelets from all schools.”

In contesting a 9-5 en banc Third Circuit ruling against it, the school district failed to muster any interest in having its claims reviewed. So, too, for the National School Boards Association and the National Association of Secondary School Principals; both filed an amicus brief in support of the Petitioner. According to Greg Lukianoff, the president of the Foundation for Individual Rights in Education (FIRE) and author of Unlearning Liberty: Campus Censorship and the End of American Debate (2012, 2014 paperback ed.): “We are pleased the Supreme Court decided not to hear the appeal in Easton because it leaves intact a speech-protective Third Circuit opinion in the spirit of Tinker. We had every reason to fear that, in the wake of the “BONG HiTS 4 JESUS” case (Morse v. Frederick), the Supreme Court might do further harm to the free speech rights of K-12 students if it entertained another student speech case. Since the high-water mark of Tinker, the Court has eroded the free speech rights of K-12 students in cases like Bethel, Hazelwood, and Morse, and we were concerned that the Justices would take the opportunity to reduce student speech rights further if given the chance. And while all of these cases deal with the free speech rights of grade school students, we continue to see lower courts applying the reduced protections of K-12 speech cases into the higher education context.”

Friend of the First Amendment

Though the New York Times opposed his confirmation, Judge D. Brooks Smith (the author of the majority opinion in Easton) has proven to be quite a friend of the First Amendment on many issues that the editorial board of the Times would (or should) value. For example, his thoughtful 2008 majority opinion in United States v. Stevens was affirmed by the Supreme Court. Similarly, his concurrence in J.S. v. Blue Mountain School District (3rd Cir., 2011, cert. denied) (a case involving school regulation of off-campus speech) provided new conceptual staying power to the Tinker ideal without sacrificing legitimate pedological needs.

If you have not read Judge D. Brooks Smith’s majority opinion in Easton, it is well worth the effort. I found it to be both nuanced and forceful in the way it analyzed the First Amendment issue while skillfully navigating the waters of several troublesome Supreme Court precedents. Also noteworthy was the following passage from the Judge’s majority opinion:

We do not envy those challenges, which require school administrators “to make numerous difficult decisions about when to place restrictions on speech in our public schools.” [citation] And the School District in this case was not unreasonably concerned that permitting “I heart boobies! (KEEP A BREAST)” bracelets in this case might require it to permit other messages that were sexually oriented in nature. But schools cannot avoid teaching our citizens-in-training how to appropriately navigate the “marketplace of ideas.” Just because letting in one idea might invite even more difficult judgment calls about other ideas cannot justify suppressing speech of genuine social value. Tinker, [citation] (“The classroom is peculiarly the ‘marketplace of ideas.’ The Nation’s future depends upon leaders trained through wide exposure to that robust exchange of ideas which discovers truth ‘out of a multitude of tongues,’ (rather) than through any kind of authoritative selection.'”

Quick Hits

Book Excerpt: Before McCutcheon – The ACLU position in the early years (SCOTUSblog)

On the Court’s docket: Strine v. Delaware Coalition For Open Government, Inc.: Does the First Amendment require government-sponsored arbitration hearings presided over by state judges to be open to the press and public? A divided Third Circuit panel said yes. The petition has been distributed for the Court’s March 21st conference.

Shawn Griffiths, The NSA’s Next Target: The First Amendment: “During a cybersecurity panel on Tuesday, General Keith Alexander, currently the head of the NSA, said he will submit proposed legislation within in the next week to prevent journalists from reporting on NSA leaks regarding the depth and scope of surveillance programs and data collection.”

Lee Davidson, Utah panel advances Big Brother vs. First Amendment bill: “Lawmakers took a first step [last month] to tweak laws about automatic license plate readers in ways they hope will rein in Big Brother surveillance of where people drive and not run afoul of the First Amendment.”

Michael Dorf, Are Universities Special For Free Speech Purposes? “[A]cademics who boycott or preclude speech by other academics simply because those other academics are affiliated with universities in countries whose policies (or whose existence) the boycotters oppose, act contrary to the value of academic freedom.”

Forthcoming Works

Two forthcoming books promise to be on special interest to First Amendment enthusiasts:

Neil H. Cogan, The Complete Bill of Rights: The Drafts, Debates, Sources, and Origins (2nd ed., Oxford Univ. Press, June 18, 2014). Whether or not you’re a tried-and-true originalist or a faint-hearted one or not one at all, if you are interested in the history of the First Amendment this book is a must. This first update since the 1997 volume expands on the original work by providing an array of additions. Among other things, the new edition provides a chapter-by-chapter discussion of rights as examined by treatise and abridgement writers in addition to Blackstone. Moreover, all margin notes and footnotes in historical dictionaries and treatises are included, so the reader has access to the totality of the original statues and case law upon which the drafters relied. I will have much more to say about this remarkable book and the light it sheds on free expression in a forthcoming post — along with an interview with Professor Cogan. Meanwhile, get your orders in for this second edition of The Complete Bill of Rights; it is well worth the money.

Bruce Allen Murphy, Scalia: A Court of One (Simon & Schuster, June 10, 2014). I’m 200 pages into an advance copy of this 600-page biography of Justice Antonin Scalia and enjoying it immensely. The book is incredibly well researched and is therefore a treasure trove of all sorts of intriguing things about the jurist who is surely making his mark in American legal history. Among other things, Professor Murphy’s illuminating book has some fascinating facts about Antonin Scalia and the various First Amendment cases and controversies he has been involved in over the past several decades. If you are Court watcher, this book is also a must. And yes, more in a later post about some of the First Amendment stories recounted in Scalia.